The Status Quo Versusthe Case for Reform

by Ryan M. Yonk
Orange County Register, June 23, 2016

Environmental policy has not been a key issue in the 2016 election season, but state Attorney General Kamala Harris and candidate for the U.S. Senate, may have signaled that a change is coming. "We have to support the Endangered Species Act," Harris recently told the Editorial Board of the Sacramento Bee. "There's just no question about that."

Harris commented after being asked about California governor Jerry Brown's plan to dig two massive tunnels under the Sacramento-San Joaquin River Delta at a cost of at least $15 billion. Concern over the California water supply and drought have emerged as important issues in the electoral contest to fill Senator Barbara Boxer's senate seat in November. Despite widespread agreement on the need to address water-supply issues, this and other plans to reform the water-supply system have prompted calls to protect the tiny Delta smelt which may face increased extinction pressures.

In her comments, Harris signals her vehement support for a well-intentioned but problematic and largely unsuccessful regulatory attempt to protect every species that may face extinction pressures.

Political concern for the Delta smelt is only the most recent example of the ESA's use to delay or defeat, in this case public works, projects. But these conflicts started the same year as the ESA's creation in 1973, when the hitherto unknown snail darter, a small, snail-eating, bottom-dwelling fish, was discovered in the Tellico Dam Project area, part of the Tennessee Valley Authority. Groups who wanted to prevent the dam pushed the Department of the Interior to list the snail darter as endangered as one of their tactics to delay construction.

The ESA has empowered environmental groups to fight any project that might negatively impact species listed under the act. Everything from utility-scale solar and wind farms, oil and gas development, off-road vehicle use, mining, timber harvesting, grazing and hunting have been challenged under the auspices of the act.

The ESA bans the "taking of listed species" and "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." This ban on taking, the fundamental source of ESA authority, applies not just to public lands, but also to species found on private land, and has been used successfully to prevent private uses on private property that might impact listed species.

All of these actions come at a significant cost. Research my colleagues and I conducted found more than $17 billion in state and federal spending from 1996 to 2013. Seventeen years and 1$7 billion later only just over 1 percent of listed species have been delisted due to recovery, meaning they are no longer under the protection of the ESA.

With due respect to Attorney General Harris, there are many reasons to reform the ESA. In fact, even her democratic opponent Loretta Sanchez agrees that some reform may be needed. When asked about the ESA and the need for improved water systems, Sanchez replied, "Everything needs to be on the table when we go in to find a solution."

Ryan M. Yonk is a Research Fellow at the Independent Institute and Assistant Research Professor at Utah State University. He is the co-author of the new book "Nature Unbound: Bureaucracy vs. the Environment," with Randy Simmons and Kenneth Sim.The Status Quo Versus the Case for ReformOrange County Register, June 23, 2016